May 5, 2018
We the people of India, on 26th January 1950, solemnly resolved to secure to all citizens of this country – Justice, Liberty, Equality and Fraternity through the implementation of the Constitution to secure these ideals. This model of equality, not restricted to other avenues, was extended to ‘equality before law’ – wherein everybody including the State, or rather pragmatically the Government, would be treated as equals in the eyes of the law to realise the primordial idea of justice.[1][2][3][4] Over centuries, numerous theorists[5][6] otherwise propagating conflicting ideologies have met each other halfway in agreeing that justice was the penultimate goal of law. In a legal system entrenched in such principles, what continues to bewilder many legal scholars and academicians among others, is the continued existence and active deployment of legislations in blatant contradiction of the aforementioned principles of equality. This unfair circumvention of law that bestows every prerogative immunity and exemption from a liability or legal duty on a select few and at the same time, alienates certain others from the same have been established as ‘privilege law’.
Privilege law, or rather privilege from law, has thus cemented its place in Indian evidentiary laws as information or communication protected from being brought in as evidence into the Courts of law, given the nature of the parties’ relationship. One such facet of this ‘privileged communication’ is ‘State Privilege’, the other two being ‘spousal privilege’[7] and ‘attorney-client privilege’.[8]
Roman Consul Cicero’s maxim ‘salus populi est suprema lex’, which means that the safety of the people shall be the highest law of the land prevails over Augustine’s ideals that ‘an unjust law is no law’ as ‘public interest’ is cited as the principle and foundation of rules laid down for privilege laws.[9][10] The privilege claimed bases itself on being detrimental to public policy in preventing evidence that may be relevant to a suit to be recused from being presented in Court and ergo the departure from ordinary rules of evidence. Moreover, if the summoning of a protected document will be damaging to public interest and its non-production would result in prejudice to some private interest, the latter must yield to the former.[11][12]
Justice Pollock in Beatson v. Skene[13] delivered that:
“We are of the opinion that if the production of a State paper would be injurious to the public service, the general public interest must be considered paramount to the individual interest of a suitor in a court of justice”
This principle follows suit and the general rule of public policy is the underlying principle for Sections 123, 124 and 162 of the Indian Evidence Act. Thus, the authoritarian-utilitarian principle that the general public interest must be considered to be far greater importance than that of an individual suitor.[14]
A special dispensation bestowed upon the State under s. 123, s. 124 and s. 162 of the Indian Evidence Act, State privilege elucidates that the disclosure of information deemed to be confidential and contained in unpublished official records is privileged from production on grounds of ‘being against affairs of the State’ or ‘detrimental to public policy’[15] unless, the head of the department concerned, permits the release of the same. Furthermore, public officers may not be compelled to disclose communications made to them in official confidence in cases wherein they opine that such disclosure shall be damaging to public interest.[16][BAP(J3]
It is pertinent to note that with respect to s. 123, there is no sacrosanct rule regarding the immunity for producing unpublished records otherwise contested. The privilege exercised by the Head of the Department is de jure only applicable if such contestations as deemed to be detrimental to the State and public interests.[17] In furtherance to this, the Privy Council in Henry Greer v. State[18], stressed that the privilege pertaining to the production of such unpublished records is “narrow and must be exercised most sparingly”.
In furtherance to this, the Supreme Court of India in State of Bihar v. Kripalu Shanker[19] while outlining the ‘general principle pertaining the confidentiality of State documents’, ruled that the Court may direct those claiming privilege to produce the confidential documents in question for only the contesting party and Court’s eyes with an “implied understanding that these documents shall not be used for any other purpose other than the one relating to the case involved.”
Also, what appears to be a grey area with respect to the section is that it does not provide an insight as to what qualifies as ‘unpublished official records’ with respect to communications made to officers in their official capacity and affairs of the State.[BAP(J4]
The relationship between s.123 and s.162 of the Indian Evidence Act is useful for the understanding of the determination of State privilege. Lord Blaneshburgh in Robinson v. State of South Australia[20] – a landmark ruling outlining the principle of State privilege and its governance, extent and mode of deployment – clearly laid down the powers of the Court in relation to the same.
“As the protection is claimed on the broad principle of State policy and public convenience, have usually been public official documents of a political or administrative character… its foundation is that the information cannot be disclosed without injury to the public interests and not that the documents are confidential or official which alone, is no reason for their non-production.”[21]
Leaning on this precedent, Indian Courts have held that they hold the right to verification for documents ipse dixit being claimed as ‘privileged’ under s.123 by public officers[22] and that the non-production of documents due to the likelihood of them being detrimental to the Crown’s case is not a valid ground.[23][24]
The Sodhi Sukhdev Singh case[25] combined the effect of s. 123 with s. 162 in laying down three main points.
Firstly, the Courts hold the right to determination whether documents ipsa dixit claimed as protected under ‘State privilege’ relate to any affairs of the State.
Secondly, that the Courts may consider other evidence while inspecting the document’s character.
Thirdly, the Ministers of State may be summoned and asked to defend their claims when found to be unsatisfactory.
Furthermore, with respect to s. 123[26] read with s. 165[27], Justice Gajendragadkar had held in the case that the rationale behind the ‘exclusionary rule’ enacted with respect to s.123 that the production of a document may be called-off if such production would cause injury to public interest. Also, the non-disclosure due to public interest supersedes private interest in disclosure.
This however was overruled in the case of S.P. Gupta v. President of India[28] wherein, the bench disagreed with the aforementioned rationale that the “interest in fair administration of justice clashes with public interest seeking to be protected by non-disclosure”[29][30] and explicitly stated that power to inspect the document for the purpose of determining whether it is a privileged document lies with the Court under the stipulation laid down under s. 91 of the Criminal Procedure Code. There exists a similar scenario in English Law wherein Courts have the power to order the production of evidence excluded.[31]
Section 124 of Indian Evidence Act protects communications made in official confidence to public officers is aimed towards similar principles of public policy – the disclosure of which may be detrimental to public interest and free communication within the public department [32][33]
The restraint on the freedom of communication made to or by public officers would according to the lawmakers have injured public interest.[34][35][36] Whether the communication was made to the public officer in their official capacity is a condition precedent whose satisfaction is essential before the officer may claim protection under State privilege. The Courts devised a test for the same wherein communication would be deemed as under ‘official confidence’ only if the document was under a process of law.[37]
However, if a document is produced in a departmental enquiry that is confidential (not under a process of law), but for the assimilation of information for future guidance to the department, it would qualify as communication made in ‘official confidence’[38]
The analysis in this paper is an exposition of the existing principles governing the law of ‘State privilege’. Additionally, I have discussed the relevant provisions of the statutory framework concerning ‘State privilege’ under the Indian Evidence Act and Criminal Procedure Code. I believe the principles of ‘State privilege’ as incorporated in the Evidence Act is based on a larger principle of public good. In the ultimate analysis, the information that a litigant demands or a Court of Law seeks to examine would only be in the context of sub serving a larger public interest and if production of such information is not in furtherance of such interests, then the claims for such information should not be permitted. I am of the opinion that this principle will hold good even after the advent of the Right to Information Act. Even though the parliament has created rights in favour of citizens to seek and obtain public information under the Right to Information Act, such information is and should always be subject to national interests.
Thus, the age-old principle of State privilege continues to be relevant for safeguarding public interests even in the modern times governed by statutory rights for information. As long as the final arbiter to determine the claim of privilege by the State is just or not is in the hands of the judiciary, the citizens are in safe hands.
[1] Pollock, Jurisprudence and Legal Essays(ed-Goodhart) 16-30
[2] S.K.Allen, Aspects of Justice; Chapter 4
[3] H.L.A Hart, The Concept of Law, Chapter 8
[4] Lloyd, The idea of law, Chapter 6
[5] Salmond, Jurisprudence (7th ed), 39
[6] Granville Austin, Lecture Vl 126, “The Science of Jurisprudence is concerned with positive law or with laws strictly so called as concerned without regard to their goodness or badness”
[7] S.122 of the Indian Evidence Act
[8] S.126 of the Indian Evidence Act
[9] Henry Greer Robinson v. State of South Australia AIR1931PC254.
[10] TM Lall v. Secretary of State AIR 1944 LAH 209.
[11] State of Himachal Pradesh v. Manmohan Bhardawaj (1983)1 LLJ 474.
[12] State of UP v. Raj Narain (1975) 4 SCC 428.
[13] Beaston v. Skene (1860)5H&N838.
[14] State of West Bengal v. Tulsiram Agarwal 1980 2 CalHN 351.
[15] S.123 of the Indian Evidence Act
[16] S.124 of the Indian Evidence Act
[17] Beatson v. Skene, 1860 L.J. Ex. 430.
[18] Henry Greer v. State, 1931 PC. 254.
[19] State of Bihar v. Kripalu Shanke AIR 1987 SC 1554.
[20] Robinson v. State of South Australia 1931 AC 703.
[21] Robinson v. State of South Australia 1931 AC 703.
[22] Nazir v. R A 1944 L.
[23] Ibrahim v. Secretary of State 161 IC 668.
[24] Collector of Juanpur v. Jamma 44A 360.
[25] State of Punjab v. Sodhi Sukhdev Singh AIR 1961 SC 493.
[26] S. 123 of the Indian Evidence Act
[27] S. 165 of the Indian Evidence Act
[28] S.P. Gupta v. President of India AIR 1982 SC 149.
[29] S.P. Gupta v. President of India AIR 1982 SC 149.
[30] State of Himachal Pradesh v. Manmohan Bhardwaj 1983LIC469.
[31] Conway v. Rimmer 1968 AC 910.
[32] Lady Dinbai Dinshaw Petit v. Dominion of India, AIR 1951 Bom 72.
[33] Governor General in Council v. Peer Md Khuda AIR 1950 EP 228.
[34] Smith v. East India Co (1841) 1 Ph 55.
[35] Hennessey v. Wright (1888) 21 QBD 509.
[36] Samarendra Kumar Deb Nath v. Union of India 1981 CrLJ 144.
[37] Nagarah Pillai v. Secretary of State AIR 1915 Mad 11.
[38] Killi Suryanarayana v. State of Madras 1954 Mad. 278.
Bhrigu A. Pamidighantam 
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